By: Pablo Irribarra, Barrister & Solicitor
What is Criminal Inadmissibility?
Criminal inadmissibility under Canadian immigration law refers to the prohibition of a foreign national (such as a visitor, student, or worker) or a permanent resident from entering or remaining in Canada due to having convictions for certain types of offences, or, in some circumstances, even having committed certain types of offences – in general, such offences would have to be such that, if they happened in Canada, would have been offence against an ‘Act of Parliament’. The term ‘Act of Parliament’ generally refers to legislation passed by the Canadian Federal Government, such as the Criminal Code and the Controlled Substances Act.
Nature of the Offence
A foreign national can be found ‘inadmissible on the grounds of criminality’ for having a conviction for one offence that would constitute an ‘indictable offence’ under an Act of Parliament (or that would be an indictable offence under an Act of Parliament if it happened in Canada), or conviction for two offences under an Act of Parliament (or would be offences under an Act of Parliament if they happened in Canada) not arising from the same incident.
Moreover, if an offence was committed outside of Canada, and the act in question was an offence in the jurisdiction where it happened, the legislation allows for an officer to also find an individual to be inadmissible on the grounds of criminality for having committed the offence, as long as it would constitute an indictable offence under an Act of Parliament if it had taken place in Canada.
Furthermore, a permanent resident (or a foreign national) can be found ‘inadmissible on the grounds of serious criminality’ for having a conviction for one offence under Act of Parliament (or that would be under Act of Parliament if it had happened in Canada) punishable by a maximum term of imprisonment of at least 10 years. Note that this does not refer to the actual length of imprisonment for which the individual was sentenced – rather, it refers to the maximum length that a sentence for that offence could be issued.
In addition, if the conviction took place in Canada, a permanent resident (or a foreign national) can also be found ‘inadmissible on the grounds of serious criminality’ if the offence under an Act of Parliament for which they were convicted resulted in the imposition of a term of imprisonment of more than six months.
Finally, a permanent resident (or a foreign national) can be found ‘inadmissible on the grounds of serious criminality’ for having committed an act outside Canada considered to be an offence in the jurisdiction where it happened, and which would constitute an offence under an Act of Parliament punishable by a term of imprisonment of at least 10 years if it had been committed in Canada.
Time and Place of Crime
Under Canadian immigration law, the place and time of the commission and/or conviction of a crime, as well as the nature of the crime, are relevant to the assessment of whether such an offence constitutes criminal inadmissibility. An individual may be found inadmissible on the grounds of criminality no matter how long ago the offence took place or when the individual was convicted, though when an offence was committed may affect how it is assessed with regards to inadmissibility, depending potentially on what legislation was in effect in Canada at the time the offence took place.
For offences committed in Canada, a conviction is required for an individual to be considered inadmissible, though if an individual is undergoing proceedings for an offence they are alleged to have committed, they may experience delays in the processing of any immigration application. To be considered admissible into Canada, an individua found to be criminally inadmissible as a result of a conviction in Canada must obtain a record of suspension (formerly known as a pardon) from the Parole Board of Canada (‘PBC’).
For offences committed outside Canada, a finding of criminal inadmissibility will usually require a conviction, particularly where the legal system in which the offence took place is comparable to the system in Canada – however, as noted above, the legislation does allow officers to make a finding of inadmissibility even in the absence of a conviction, and where an assessing officer decides that it would be appropriate to do so, they may consider other evidence that an offence took place, including an applicant’s statements, evidence of arrests or charges, trial records, etc.
Criminal Rehabilitation in the immigration context
Where an individual has been found to be criminally inadmissible due to a conviction (or offence committed) outside of Canada, they will need to apply for Criminal Rehabilitation through Immigration, Refugees, and Citizenship Canada (‘IRCC’). Moreover, in some limited circumstances, an individual might be found upon assessment to be automatically rehabilitated, or ‘Deemed Rehabilitated’, though the criteria for ‘Deemed Rehabilitation is very limited. Finally, in a few circumstances, a pardon obtained through a foreign authority may be considered sufficient to overcome inadmissibility – note, however, that care should be exercised in these circumstances, as foreign pardons are not automatically accepted by Canadian immigration authorities, and rehabilitation may therefore be required despite an individual having obtained a foreign pardon.
An immigration officer may find an individual criminally inadmissible to Canada even if their criminal past was never raised as an issue in their previous entries into Canada – if these criminal convictions or acts were part of their record, and the individual was not previously found to be rehabilitated or pardoned (where applicable) for those specific offences, then they can be found to be criminally inadmissible.
Age of commission & conviction
An individual may not be considered inadmissible if they were convicted as a juvenile or minor in Canada, or if they were treated as a young offender in the country where they were convicted. Additionally, if they were convicted in a country that does not have special provisions for young offenders, it is possible that they may not be considered inadmissible if they would have been convicted as a juvenile or minor in Canada. This is not automatic, however, and an assessment will be needed, including consideration of whether the circumstances of their conviction would have been considered an offense under the Young Offenders Act or the Youth Criminal Justice Act had they taken place in Canada.
Furthermore, an individual may be considered inadmissible if they were charged and convicted as an adult in a country that has special provisions for young offenders, or if they were convicted in a country that does not have special provisions for young offenders, but the circumstances of their conviction would not have been considered an offense under the Young Offenders Act or the Youth Criminal Justice Act. All of these would require a case-by-analysis as part of the assessment of inadmissibility.
Do you have a previous criminal conviction and want to know your options for travel to Canada? Reach out to us at Reception@MigrationLawGroup.com or 416-203-2899 to book a consultation.